W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. N.G., 2009 ONCA 599
DATE: 20090731
DOCKET: C45080
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
N. G.
Appellant
Donald McLeod, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: July 23, 2009
On appeal from conviction by Justice T. C. Whetung of the Ontario Court of Justice, dated January 18, 2006 and sentence imposed, dated February 15, 2006.
ENDORSEMENT
[1] The appellant was convicted of sexual assault. On appeal he submits that the trial judge held the appellant’s evidence to a higher standard of scrutiny than the prosecution’s evidence; that the trial judge made unreasonable findings and engaged in speculation in relation to the evidence of a nurse and a toxicologist called by the Crown; and that the trial judge failed to adequately consider the complainant’s motive to fabricate.
[2] We do not accept these submissions. The trial judge gave lengthy and careful reasons in which he reviewed the evidence fully and explained why he accepted or rejected the various witness’s evidence. We see nothing unreasonable about his findings. In our view, the appellant’s submission that the trial judge applied a higher standard of scrutiny to his evidence is in reality an invitation to this court to reweigh the evidence. That we cannot do. We would not give effect to this ground of appeal.
[3] Although the trial judge found the evidence of the nurse and the toxicologist highly credible and therefore entitled to significant weight, his reasons reflect the limited role of their evidence at the trial. While not determinative, the nurse’s evidence provided some support for the complainant’s version of events; the toxicologist’s evidence provided a context for evaluating the complainant’s state of inebriation.
[4] Finally, in our opinion, in the context of the evidence in this case, the trial judge provided an adequate explanation for rejecting the defence submission that the complainant had a motive to fabricate.
[5] The appeal is therefore dismissed.
Signed: “Janet Simmons J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”